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With a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.

Today, we here at Abnormal Use take a brief hiatus from the realm of product liability todiscuss a recent decision from the South Carolina Supreme Court which will significantly impact insurers doing business in the state. The case, Harleysville Group Ins. v. Heritage Communities, Inc., et al., No. 2013-001281 (S.C. Jan. 11, 2017), is a lengthy decision addressesing, for the first time in South Carolina, the content of reservation of rights letters. While the opinion also discusses the time on risk allocation for damages awarded under a general verdict and coverage for punitive damages, it is the discourse on reservation of rights letters that needs closer scrutiny.

As with most significant South Carolina insurance coverage matters in recent times, Harleysville arises out of two construction defect lawsuits. A little background is necessary. The underlying lawsuits involved the construction of two condominium developments constructed between 1997 and 2000. After construction was complete and the units were sold, the purchasers became aware of certain construction deficiencies and filed suit against Heritage Communities (and several subsidiary companies), the entities who developed and constructed the developments.

During the period of construction, the Heritage entities were insured under CGL and excess liability policies issued by Harleysville. Heritage was uninsured after its last policy lapsed in 2001. After receiving notice of the lawsuits, Harleysville agreed to defend the Heritage entities under a reservation of rights. According to the Court, Harleysville’s reservation of rights consisted of “generic states of potential non-coverage” coupled with a cut-and-paste of most of the Harleysville policy language. Nonetheless, Harleysville continued to provide a defense to the Heritage entities through trial. In each case, the jury returned a general verdict in favor of the plaintiffs, awarding both actual and punitive damages. Thereafter, Harleysville filed a declaratory judgment action seeking a declaration that it had no duty to indemnify Heritage for the verdicts. In the alternative, Harleysville sought an allocation of which portion of the juries’ verdicts constituted covered damages and whether those portions were subject to a time on risk allocation.

The declaratory judgment action was referred to a Special Referee. After staying the matter pending the South Carolina Supreme Court’s decision in Crossmann, 717 S.E.2d 589 (2011), the Special Referee determined that Harleysville failed to properly reserve its rights to contest coverage. As such, he found that coverage was triggered under the Harleysville policies because the general verdicts included some covered damages. While the Special Referee presumed that the verdict included certain non-covered damages (e.g. the repair/replacement of faulty workmanship), he determined it would be improper and speculative to allocate the general verdicts. As such, he ordered that the entirety of the actual damages was covered under the Harleysville policies, subject to Harleysville’s time-on-risk. In addition, the Special Referee held that the punitive damages were also covered under the policies. The parties subsequently filed cross-appeals.

The Court began its analysis with a review of Harleysville’s reservation of rights letters. The letters, sent in 2003 and 2004, explained that Harleysville would provide a defense, identified the insured entities and the lawsuit, summarized the allegations, and identified the policy periods for the policies. In addition, the letters contained 9-10 pages of policy provisions, including the insuring agreement, exclusions, and definitions. However, the letters contained no discussion of the various provisions or explanation of why Harleysville was relying on them. Except for the claim for punitive damages, the letters did not specify the particular grounds upon which Harleysville disputed coverage. Finally, the letters advised the insureds of potential uninsured exposure and recommended that the insureds consider retaining personal counsel. Also of note to the Court, the letters did not advise the insureds of the need for an allocation of damages between covered and non-covered losses, nor did they reference any potential conflicts of interest or notify the insureds of Harleysville’s intent to pursue a declaratory judgment action.

The Court affirmed the Special Referee’s finding that Harleysville properly reserved its rights as to punitive damages but failed to properly reserve rights to contest coverage for the general verdict. In doing so, the Court noted that a reservation of rights must provide the insured with sufficient information to understand the reasons the insurer believes the policy may not provide coverage. A generic denial of coverage with a verbatim recitation of all or most of the policy provisions is not sufficient. Instead, the insurer must alert the insured to the potential that coverage may be inapplicable; that conflicts may exist between the insurer and the insured; and that the insured should take steps necessary to protect its potentially uninsured interests.

Having found that Harleysville’s reservation was not sufficient, the Court, relying primarily on case law from other jurisdictions, engaged in a lengthy discourse of the requirements of a proper reservation. Significantly, the Court stated that:

Prior to undertaking the defense, the insurer must specify in detail any and all bases upon which it might contest coverage. (citing Desert Ridge Resort LLC v. Occidental Fire & Cas. Co. of N.C., 141 F.Supp.3d 962 (D.Ariz. 2015)).

A reservation of rights letter must give fair notice to the insured that the insurer intends to assert defenses to coverage or to pursue a declaratory judgment at a later date. (citing United Nat’l Ins. Co. v. Waterfront N.Y. Realty Corp., 948 F.Supp. 263 (S.D.N.Y. 1996)).

Because an insurer has the right to control the litigation, an insurer has a duty to inform the insured of the need for an allocated verdict as to covered and non-covered damages. (citing Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602 (Minn. 2012); Magnum Foods, Inc. v. Cont’l Cas. Co., 36 F.3d 1491 (10th 1994)).

The Court placed significant emphasis on the fact that an insurer has the right to control the defense and, thus, must keep the insured informed of all potential coverage issues to avoid prejudice. In the Court’s view, one of the primary deficits in the Harleysville reservation of rights letters was the lack of notice to the insured of the need for an allocated verdict as between covered and uncovered claims. Unfortunately, the Court does not expressly state who has the burden of actually seeking the allocation. Some of the language in the opinion seems to place the burden on the insured: “…in no way did the letters inform . . . [the insureds] that they should protect their interests by requesting an appropriate verdict.” Other language, however, seems to place the burden on the insurer: “. . . an insurer typically has the right to control the litigation and is in the best position to see to it that the damages are allocated . . .” If the burden does, in fact, rest with the insurer, this decision should provide strong ammunition in support of an insurer’s motion to intervene — which, in the past, South Carolina courts have generally disfavored.

Based on Harleysville, insurers must exercise special care when issuing reservation of rights letters. At a minimum, reservation of rights letters should provide unambiguous notice to the insured of the following:

the specific issues raised in the underlying litigation or claim giving rise to the coverage dispute, including the particular grounds upon which coverage;

any potential conflicts of interest between the insurer and insured;

the intent to pursue a declaratory judgment, if applicable, in the event of an adverse jury verdict; and

the need to obtain a written explanation of the jury award that identifies the claims or theories of recovery actually proved and the portions of the award attributable to

Failing to provide a sufficiently specific reservation of rights may result in the insurer being precluded from disputing coverage. With regard to covered and non-covered claims, because the Court has not expressly stated who has the burden of seeking an allocation/clarification from the jury, it is probably more prudent for insurers to take affirmative steps to protect their coverage position absent further guidance from the Court.

In South Carolina, when the plaintiff brings a negligence-based product liability claim, he or she brings comparative negligence into the picture because South Carolina is a modified comparative negligence state. For any negligence based claims, the jury will be required to apportion fault between the plaintiffs and any defendants in the case. If a Plaintiff is found to be more than 50 percent at fault, he or she will be barred from recovery. If a Plaintiff is found to be 50 percent or less at fault, then the Plaintiff’’s recovery will be reduced in proportion to his percentage of fault. If the jury hypothetically awards a Plaintiff $100,000.00 on a negligence based claim, and the Plaintiff is found to be 30 percent at fault, then the Plaintiff’s recovery will be reduced by 30 percent, resulting in a verdict for $70,000.00. At the same time, it should be noted that under current law in South Carolina, comparative negligence is probably not a defense to strict liability or breach of warranty claims.

Finally, any potential liability on the part of the product liability defendant may be reduced/apportioned pursuant to the South Carolina Contribution Among Tortfeasors Act (S.C. Code Ann. § 15-38-10, et. seq.). As a result of revisions to the Act in 2005, South Carolina is now a modified joint and several liability state. In South Carolina, if a defendant’s conduct is determined to constitute 50 percent or more of the total fault for the Plaintiff’s damages, then the defendant is jointly and severally liable for the full verdict returned in the case. When the defendant’s conduct constitutes 50 percent or more of the total fault, the defendant is not entitled to have its liability reduced or apportioned under the Act. However, if a defendant’s conduct is determined to be less than 50 percent of the total fault, then the defendant may only be liable for its proportionate share of any verdict that is returned. In the hypothetical provided above, in which the jury awards $100,000.00 and finds that the Plaintiff is 30 percent at fault, if the defendant is found to be 10 percent at fault, the defendant may only be responsible for paying $7,000.00. Significantly, the defendant’s ability to potentially have its liability, if any, “apportioned” or reduced pursuant to the Act clearly would exist as to any negligence based claims asserted by the Plaintiffs. South Carolina courts have not yet decided whether the theory of modified joint and several liability (i.e. apportionment of fault) will apply to strict liability and breach of warranty based claims. Other states that have considered this issue are split, with some states concluding that liability should be apportioned for strict liability and breach of warranty claims and other states concluding that pure joint and several liability (with no apportionment or reduction) should apply to those claims.

As our South Carolina attorney readers know, the Supreme Court of South Carolina has been slowly unveiling a state court electronic filing pilot program in counties throughout the state. In a March 10 order, the Supreme Court expanded the program to Greenville County.

The order is effective as to Greenville County as of yesterday, March 22, 2016.

As it does each year at about this time, the South Carolina Supreme Court has issued its order on interest rates and judgments. In case you missed it, the complete order is as follows:

S.C. Code Ann. § 34-31-20 (B) (Supp. 2015) provides that the legal rate of interest on money decrees and judgments “is equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus four percentage points, compounded annually. The South Carolina Supreme Court shall issue an order by January 15 of each year confirming the annual prime rate. This section applies to all judgments entered on or after July 1, 2005. For judgments entered between July 1, 2005, and January 14, 2006, the legal rate of interest shall be the first prime rate as published in the first edition of the Wall Street Journal after January 1, 2005, plus four percentage points.”

The Wall Street Journal for January 2-3, 2016, the first edition after January 1, 2016, listed the prime rate as 3.50%. Therefore, for the period January 15, 2016, through January 14, 2017, the legal rate of interest for judgments and money decrees is 7.50% compounded annually.

As we noted recently, it would be wise for practitioners to investigate their local federal district court’s local rules in light of the recent revisions to the Federal Rules of Civil Procedure. In the spirit of that advice, we direct your attention to a recent order by the U.S. District Court for the District of South Carolina, which you can find here.

For ease of reference, we’ve also included the screen capture below with the text of the order:

Signed by Judge Wooten, the order notes that the local rules are amended and effective as of December 1, 2015 (the same date as the FRCP revisions).

Last week, the South Carolina Supreme Court established a Civil Motions Pilot Program to begin next month governing motion practice in the Third and Fifteen Circuits. Basically, the order follows the form of the federal rules. The pilot program will require contemporaneous memoranda in support of motions, and opposition papers to be filed within 30 days. It also features a number of new formal requirements. If you practice in those circuits, you’ll need to follow the new rules. Even if you practice elsewhere, you may wish to consider the new rules as some evidence of what the South Carolina Supreme Court believes to be best practices. You can read the court’s order here.

Heads up, South Carolina lawyers! In case you haven’t heard, the South Carolina Supreme Court recently revised its rule on the issuance of subpoenas to provide that the required witness fee and mileage reimbursement need not be tendered until the witness actually appears for the deposition or trial. The court has also approved revised subpoena forms which are listed on its website.

Plaintiffs often send notice of claim and pre-suit demands. Occasionally, it is a good idea to resolve a claim before filing suit, but more often than not, pre-suit resolution is not possible, and everyone knows that a lawsuit will eventually be filed. Typically, there will be an extended silence following the breakdown of pre-suit negotiations, and nothing else happens until the plaintiff files the lawsuit, which often happens the day before the statute of limitations runs. Meanwhile, the Plaintiff is free to collect evidence and otherwise build his or her case, choose the best venue for the case, and examine other relevant issues. All the while, the defendant waits in the dark, at least procedurally. But what if a potential defendant could decide when and where the dispute is taken to court? What if the defendant could begin discovery while recollections and evidence remain fresh? Perhaps the South Carolina Uniform Declaratory Judgment Act (SCUDJA) provides the opportunity to do so.

Accordingly, we’ve been doing some brainstorming on this topic.

Declaratory judgments are typically filed to settle insurance coverage disputes, constitutional issues, and other nontraditional legal disputes. However, the SCUDJA bestows upon courts the power to declare “rights, status, and other legal relationships whether or not further relief is or could be claimed.” SC Code Ann § 15-53-20. A DJ can be used to ask the court to construe a contract “before or after there has been a breach thereof.” SC Code Ann § 15-53-40. A DJ can be used to try and determine an issue of fact “in the same manner that issues of fact are determined in other civil actions” and parties to a DJ have a right to a jury trial. SC Code Ann § 15-53-90. The purpose of the SCUDJA is to provide “relief from uncertainty,” and the statute is to be “liberally construed.” SC Code Ann § 15-53-130; Harrington v. Blackston, 311 S.C. 459, 463, 429 S.E.2d 826, 829 (Ct. App. 1993) (“Moreover, our Supreme Court has held that declaratory judgment actions must be liberally construed to settle legal rights and remove insecurity from legal relationships without awaiting a violation of the relationships.”).

Once a potential defendant receives notice of a claim and a demand, it would appear that it is then aware of a dispute. We would submit that the potential defendant should be able to then file a DJ, asking the court to declare that the potential defendant has not violated the rights of the potential plaintiff. This would resolve the dispute, the uncertainty, and would accordingly further the purpose of the SCUDJA. Pretty crazy, right?

Obviously, the DJ plaintiff would need to determine whether a DJ makes sense from a strategic standpoint. Considerations would include: the amount in controversy, the likelihood that the claimant will actually file suit; the strength of the potential defense to the claim; whether there is an advantage to beginning discovery now instead of waiting for the claimant to file suit; and of course venue considerations. This is a novel approach, to be certain, and it woudn’t be appropriate in most cases. But there might be that one case – that unusual set of facts and legal issues – that prompts consideration of this approach.

As you may know, sometimes we here at Abnormal Use contribute content to other online ventures. Last week, our own Kyle White saw the publication on an article he wrote in DRI’s Strictly Speaking newsletter (the official publication of DRI’s Product Liability Committee). The subject is one he knows well: asbestos jurisprudence in South Carolina.

A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in mesothelioma cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from a Foster Wheeler boiler caused the decedent’s mesothelioma. In viewing the evidence in the light most favorable to the Plaintiff, the Court determined that co-worker testimony established that a Foster Wheeler boiler may have been present in the decedent’s vicinity during his employment at Westvaco Pulp and Paper Mill in North Charleston, South Carolina. Additionally, the evidence showed that some of the boilers at the plant may have been insulated with asbestos and that asbestos may have been airborne in the plant due to work on equipment at the plant. However, there was no direct evidence that the possible Foster Wheeler boiler was insulated with asbestos, or, in turn, that asbestos insulation on a Foster Wheeler boiler was manipulated such that it was breathed by the decedent.

A sub-issue in the case involved an affidavit submitted by the Plaintiff in opposition to the motion for summary judgment. Apparently, the affidavit was executed by the affiant in another, unrelated case. The affiant stated that Foster Wheeler specified asbestos insulation for its boilers during the relevant time frame. Foster Wheeler argued that the Court should strike the affidavit as irrelevant, pointing to deposition testimony that showed that the insulation specifications for Foster Wheeler’s boilers depended on the terms of the contract with a particular customer and the fact that asbestos insulation happened to be specified in one contract does not mean that asbestos insulation was specified in the contract with Westvaco. The Court agreed, granting the motion to strike.

As we recently noted, GWB now has an office in Charleston, South Carolina. With our growth over the last five years, we thought our readers might enjoy a bit of the firm’s history. Gallivan, White, & Boyd, P.A. was founded in Greenville, South Carolina in 1948. The firm practiced general law during this time period and served as the statewide division counsel for Southern Railway Company and general counsel for Woodside Bank. The firm continued as general counsel when a merger created the state’s largest bank known as South Carolina National Bank. Southern Railway Company changed its name to Norfolk Southern Corporation in 1982 and remains a client of the firm today.

In the 1950’s, the small law firm began to grow in number and reputation. The firm expanded to four attorneys and relocated to 128 Boadus Avenue in Greenville in 1958. Greenville mirrored the firm in its growth, becoming known as the textile capital of the world in the 1950’s and 1960’s.

During the 1970’s, the firm continued its steady expansion with the addition of H. Mills Gallivan and Daniel B. White in 1976 and W. Howard Boyd, Jr. in 1977. Mills, Danny, and Howard were the firm’s 7th, 8th, and 9th attorneys. With their arrival, the firm began focusing its practice on business and corporate litigation, trial work, and mass tort litigation, including the defense of personal injury cases arising from exposure to toxic substances, including asbestos.

The firm continued its successes in the 1980’s and 1990’s by steadily increasing its reputation as a leading litigation law firm as well as increasing the firm’s number of attorneys and practice areas. The firm moved its practice to 330 East Coffee Street in Greenville in 1983 and grew to 17 attorneys by 1988. Just a few years later, the firm outgrew its Coffee Street location with its growth to 27 attorneys in 1998. In the early 1990’s, the firm served as lead South Carolina counsel for a chemical manufacturer in the first case multidistricted in South Carolina by the Judicial Panel on Multidistrict Litigation.

At the turn of the century, the firm officially became known as Gallivan, White, & Boyd, P.A., and in 2003, it moved to its current location at Liberty Plaza overlooking downtown Greenville. In 2005, members of GWB’s Commercial Transportation Group served as lead counsel in the emergency response, post-accident investigation, and claims handling for a major railroad company after a train derailment and toxic chlorine release resulted in more than 9 deaths and over 1,000 claims in South Carolina.

Then, GWB represented a Fortune 500 client in class actions brought against it by physicians. GWB was also retained in 2008 to represent this client again in a purported class action of its more than 13,000 policyholders seeking distribution of dividends.

GWB experienced continued growth during this decade, opening its first offices outside of Greenville. While continuing its emphasis on litigation, the firm has also expanded its corporate and commercial transaction practice. GWB grew from 27 attorneys in 1998 to 47 attorneys in 2010, to 61 attorneys in 2015. The firm is one of the Southeast’s leading business and commercial law firms with five offices in the Carolinas located in Greenville, Columbia, Anderson, and Charleston, South Carolina and Charlotte, North Carolina.

The firm operates within four major groups—litigation, business and commercial law, insurance practice and workplace practices. Each group is further organized into practice area teams of lawyers who stay informed of the latest developments that impact their specific clients and the particular industries served.

GWB’s success and longevity are intertwined with its reputation for providing wise legal counsel and first-class client service. The values that have come to define Gallivan, White, & Boyd, P.A. to its clients and the community are the compass that guide the firm into the future.